Boston is pushing for masks as a battle brew around the transit rule

Boston urged people to start wearing masks Thursday, and the Biden administration was considering its next legal move in a high-stakes court battle over the abrupt end of the national mask mandate on planes and mass transit.

The Boston Public Health Commission found a 65% increase in hospital admissions and cases, and an even larger increase in COVID-19 levels in local sewage samples. It also stressed that the guidelines are only a recommendation and not an order.

The country is grappling with how to deal with the next phase of the pandemic and finding the right balance in implementing health measures at a time when many Americans are ready to move on after two grueling years.

A federal judge in Florida this week threw out a national mask mandate for mass transit, and airlines and airports responded quickly Monday by rescinding their requirements that passengers wear face coverings. This put the Biden administration in a position to attempt to steer an appeal that could have far-reaching implications for the power the Centers for Disease Control and Prevention have in regulating future health emergencies.

Philadelphia last week became the first major city to bring back a mask mandate to respond to a surge in infections and hospitalizations there, and other Northeast cities have been closely watching the trend lines and a new color-coded map from the CDC to decide next steps.

The map, which the CDC switched to in late February, focuses less on positive test results and more on what’s happening in hospitals, to give community leaders clearer guidance on when to push for masking. Nearly 95% of US counties still have low transmission based on the map, but more locations have shifted to medium and high transmission in recent weeks, including many locations in upstate New York.

Hospitalizations have been picking up across the country in recent weeks, but are nowhere near the peak reached at the peak of the Omicron surge.

“By taking these precautions, we are protecting the advances we have made in our community,” said Dr. Bisola Ojikutu, Executive Director of the Boston Commission.

Boston’s recommendation came two days after the city’s transit system lifted the mask requirement in response to the national transportation ruling, reflecting the mishmash of reactions following the court decision by an appointee to former President Donald Trump.

As the Biden administration hammers out an appeal, Lawrence Gostin, a public health law expert at Georgetown University, said a “monumental battle” was unfolding, with the CDC’s future at stake. The agency continues to recommend that people wear masks on all closed public transport.

“The question for the courts and the public to decide is when the next health crisis hits – and it will – are we going to have a strong public health agency to protect the population?” he said. “Or will the CDC just have their hands tied behind their backs? I think it’s very likely that we’re going to see the CDC in handcuffs.”

While the Supreme Court lifted the Housing Agency’s moratorium on evictions, it was on the fringes of the agency’s authority. Setting rules for mask-wearing on public transit is a fundamental cornerstone of the CDC’s power, Gostin said.

“If someone flies from New York to LA, no state will stop them. The only thing preventing this transmission is the CDC,” Gostin said.

An appeal would go to the 11th Circuit Court of Circuits, which is considered a right-leaning court, and conservative judges have a majority in the US Supreme Court. A ruling could strip the CDC of the power to issue mask orders and place all future orders under a “legal cloud.” ask, he said.

Temple Law’s Craig Green said the federal government‘s strategy is “really almost brilliant” because it could win in two ways with its appeal. If the number of COVID-19 cases continues to fall, Justice Department lawyers could argue that the issue is moot and demand that the case be thrown out.

“Nobody will have a reason to ever cite it as a precedent going forward,” he said.

But he said as cases increase, the federal government would be in a better position to reintroduce a mask mandate.

“I think the arguments about what a government can do, what the federal level can do under emergency conditions, have been very difficult and problematic,” he said. “I can understand why the Department of Justice and the United States government really didn’t want to see that kind of curtailment of their authority in the future, even with COVID becoming more controlled in the future.”

Amid the court battle, American, United and Delta have all indicated they will lift bans they imposed on passengers who refused to wear masks after masks are optional on flights.

“We spoke to them individually,” United CEO Scott Kirby told NBC on Thursday. “Many of them are assuring us that now that the mask mandate is lifted, everything will be fine and I have faith that the vast majority of them will.”

Many passengers shrugged off the changes. When Jon Schaudies flies from Chicago to San Antonio next week, he will wear a mask but won’t worry if the passenger next to him doesn’t do the same.

Schaudies, who travels frequently as the vice president of a small manufacturing company, believes he is sufficiently protected by the COVID-19 vaccine and booster to avoid becoming seriously ill if he does contract it.

“I feel like people are at those extremes, but I’m kind of right in the middle,” said Schaudies, 51, who plans to get a second booster shot.

He understands the concerns of parents traveling with children who are too young to be vaccinated, but says “they have to make a decision” about whether to fly. “But for business travelers, we can’t stop.”

“At some point the world has to move on.”

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Hollingsworth reported from Mission, Kansas, and Whitehurst from Salt Lake City.

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